Held, the civil revision petition is allowed. The order dismissing the suit for default dated 25.11.2017 is set aside by condoning the delay, on the condition that the petitioner pays Rs. 10,000 to the respondent.
The dismissal order dated 25.11.2017 is set aside by condoning the delay, conditional upon payment of Rs. 10,000 to the respondent.
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THE HON’BLE MS JUSTICE B.S.BHANUMATHI
C.R.P No. 4743 of 2018
ORDER:
This petition is filed under section 115 CPC against the order, dated 05.10.2017 dismissing I.A.No.385 of 2016 in O.S.No.296 of 2008 on the file of the 1st Addition Junior Civil Judge, Tenali, Guntur District filed Under Section 5 of Limitation Act to set aside the dismissal order passed on 25.11.2017 by condoning the delay of 201 days and restore the suit.
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did not attend before the Court. The father of the petitioner underwent treatment of chemotherapy, and therefore, he could not attend before the Court. The trial court has dismissed the suit for default as such. The petitioner says that the nonappearance is neither wilful due to nor negligence. The petitioner further says that he is working in Military Services and could not get causal leaves and was unable to enquire the case status, but, recently, before filing of the petition, he came to know about the facts through his counsel that the suit was dismissed for default on 25.11.2015. Therefore, he seeks the relief now claimed in the petition. The petition was opposed by filing counter.
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failed to file any medical record in support of the reasons stated for nonappearance and the delay in filing the petition, except alleging the ill-health.
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representing in the suit, died on 04.12.2015, is evident. It was already informed to the trial court that he was taking treatment for brain tumour, and consequently, he died very shortly after the date of dismissal of the suit. The petitioner ought to be more careful in placing the necessary documentary evidence in support of the reasons stated by him for the cause of default in making representation before the trial court. In view of the fact that the father of the petitioner died as a result of his ill-heath, there is sufficient cause shown for the default in making representation on 25.11.2017. In addition to that, since the petitioner is admittedly working in Military Services, the reason for the delay and filing the petition is also sufficiently shown under the above circumstances. But, the way in which the matter was handled shows that the petitioner is not diligent enough to take the proceedings on correct lines.
It is also noticed in this case that the petition was originally filed to set aside the order of dismissal of the suit for default, but, the same has been corrected seeking to relief of condoning the delay in filing the petition to set
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aside the default order, and also the relief originally mentioned therein, i.e., to set aside the default order. Rule 55 of the Civil Rules of Practice makes provision that separate reliefs shall be claimed in separate petitions. An exception to the general rule is provided under Rule 28 of the Civil Rules of Practice. In the present case, instead of filing two separate petitions, one for condonation of delay U/sec. 5 of Limitation Act and the other one to set aside the default order under Order 9 Rule 9 CPC, a single petition was filed for both reliefs. It shows latches not only on the part of the petitioner in filing a single petition claiming two reliefs, but also on the part of the trail court for not making proper checking before registering the petition. Therefore, in the interest of justice, this Court not inclined to reject the relief on mere technical grounds.
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Consequently, miscellaneous petitions, if any, pending in this petition shall stand closed
B.S.BHANUMATHI, J
05.12.2022.
K M S
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THE HON’BLE MS JUSTICE B.S.BHANUMATHI
C.R.P No. 4743 of 2018 05.12.2022
K M S
2 issues framed by the court
Whether the delay in filing the revision petition to set aside a default dismissal order can be condoned.
Whether the single petition for condonation of delay and setting aside the default order can be allowed despite procedural irregularity.
5 provisions across 3 enactments
Petitioner (Plaintiff)
01st Respondent/Applicant
02nd Respondent/02nd Defendant
B.S.BHANUMATHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
